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NAVY | DRB | 2003_Navy | ND03-01103
Original file (ND03-01103.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT

ex-SR, USN
Docket No. ND03-01103

Applicant’s Request
The application for discharge review was received on 20030613. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before a traveling panel closest to Houston, TX. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, and also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “The reenlistment code I received was improper because although my actions at time the time were disrespectful to the Navy, but I would like a second chance to prove that I have matured & that I am a better person. I would like my discharge overturned, so I can receive further education to become a nurse.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Reference Letter from Reverend C__ H___ dated May 27, 2003
College Verification Letter dated September 5, 2002
Copy of Nurses Aide Diploma
Copy of Student Transcript from Nurses Aide Program


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000229 - 001009  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 001010               Date of Discharge: 020628

 Length of Service (years, months, days):

         Active: 01 08 19
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

Education Level: 11                        AFQT: 42

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (2)    Behavior: 2.00 (2)                OTA: 2.25

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 3

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL UNDER HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

001011:  You are being retained in the Naval Service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the RECRUIT QUALITYASSURANCE INTERVIEWER and if it is found that additional information has not been disclosed you could be subject to other judicial or administrative proceedings.
         Marijuana 2X, 9/96-0/00(In DEP)

010302:  Retention Warning: Advised of deficiency (You are 60 or more days past due and in violation of the UCMJ Article 134, Dishonorable failure to pay just debt of Government Visa Card), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011128:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Award: Forfeiture of ½ pay per month for 2 months, correctional custody for 30 days, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.

011203:  Retention Warning: Advised of deficiency (Unauthorized absence for 4 days 7-10 September 2001), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020423:  NJP for violation of UCMJ, Article 134: Obtaining services false pretenses.
         Award: Reduction E-1. No indication of appeal in the record.
020423:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.
020423:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to submit written statement for consideration by Separation Authority and the right to obtain copies of the documents used to support the basis for the separation

020425:  Commanding Officer recommended Applicant discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offense.
020517:  COMLOGRON TWO authorized discharge general under honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020628 with a general under honorable conditions for misconduct due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 Issue 1. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by the award of nonjudicial punishment (NJP) on two occasions for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included unauthorized absences, and obtaining services under false pretenses. The applicant’s conduct and proficiency markings, which form the primary basis for determining the character of his service, reflect her misconduct, and fall below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief is therefore denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.

The following is provided for the edification of the applicant. There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to her discharge at that time. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.af.mil ”.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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